Kingsway Group Limited (formerly known as Willis & Bowring Mortgage Investments Limited) v Belramoul - [2009] NSWSC 608

CITATION: Kingsway Group Limited (formerly known as Willis & Bowring Mortgage Investments Limited) v Belramoul & Ors [2009] NSWSC 608

HEARING DATE(S): 29 April 2009, 30 April 2009, 1 May 2009, 1 June 2009

JUDGMENT DATE :
8 July 2009

JUDGMENT OF: Schmidt AJ

CATCHWORDS: MORTGAGES - mortgages and charges generally - rights and liabilities of mortgagor and mortgagee - mortgagee's possession and sale - no claim arising claim under section 420A of the Corporations Act 2001 (Cth) - mortgagee's breach of duty - whether mortgagee failed to act in good faith, unfairly and unconscionable sacrificing the mortgagor's interest in the property - whether mortgagee failed to preserve property - whether mortgagee failed to market property - whether mortgagee failed to engender competition - mortgagee's failures not established - orders sought granted

LEGISLATION CITED: Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Artistic Builders Pty Limited v Elliott and Tuthill (Mortgage) Pty Limited 10 BPR 19,565
Barns v Queensland National Bank Limited and Anor (1906) 3 CLR 925
Commonwealth Bank of Australia v Hadfield [2004] NSWCA 350
Hawkesbury Valley Developments Pty Ltd v Custom Credit Corp Ltd (1994) 8 BPR 15,581
Jenkins v National Australia Bank Limited [1999] VSCA 3
Jeogla Pty Ltd v Australia and New Zealand Banking Group Ltd (1999) 150 FLR 359
Pendlebury v The Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676
Reinehr Industrial Lease and Finance Pty Ltd v Jordan (Unreported NSWCA, 4 June 1974, Street ACJ, Hardie and Glass JA)
Westpac Banking Corporation v Kingsland (1991) 26 NSWLR 700

PARTIES: Plaintiff - Kingsway Group Limited (formerly known as Willis & Bowring Mortgage Investments Limited)
First Defendant - Nabil Belramoul
Second Defendant - Suzanne Wendy Belramoul
Third Defendant - Daryl Kenneth Badman

FILE NUMBER(S): SC 10266/06

COUNSEL: Mr C Harris, SC - Plaintiff
Mr D Brogan, counsel - Defendants

SOLICITORS: Willis & Bowring Solicitors - Plaintiff
Websters - Defendants

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SCHMIDT AJ

Wednesday, 8 July 2009

10266/06 - KINGSWAY GROUP LIMITED (FORMERLY KNOWN AS WILLIS & BOWRING MORTGAGE INVESTMENTS LIMITED) v NABIL BELRAMOUL & ORS

JUDGMENT

1 HER HONOUR: The plaintiff filed its statement of claim in January 2006, seeking orders in respect of moneys due under a loan agreement, secured by a registered mortgage over property situated at Mosman, following the defendants' failure to pay interest due under the loan. The defence raised claims of waiver or estoppel, the plaintiff having earlier obtained possession of the land and alternatively, that the proceedings were an abuse of process.

2 By judgment of 31 August 2006, the defence was struck out as disclosing no reasonable defence and judgment in favour of the plaintiff in the sum of $2,508.489.03 was entered, with an order for costs in favour of the plaintiff.

3 By motion of August 2007, the defendants sought orders setting aside the 2006 judgment and allowing them to file a further defence. Part…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Kingsway Group Limited (formerly known as Willis & Bowring Mortgage Investments Limited) v Belramoul [2009] NSWSC 608
Case: [2009] NSWSC 608
Decision Date: 8 July 2009

CaseChat Overview and Summary

The case of Kingsway Group Limited (formerly Willis & Bowring Mortgage Investments Limited) versus Belramoul was brought before the court to resolve disputes regarding a mortgage and the actions of the mortgagee. The plaintiff, Kingsway Group Limited, sought to enforce a mortgage over a property held by the defendant, Belramoul. The defendant argued that the mortgagee had breached its duties by not acting in good faith, unfairly and unconscionably sacrificing the mortgagor's interest in the property, failing to preserve the property, and failing to adequately market the property to engender competition.

The court was required to determine whether the mortgagee had indeed failed in its duties as alleged by the defendant. This involved examining whether there was a breach of good faith, whether the mortgagee unfairly and unconscionably sacrificed the mortgagor's interest, and whether the mortgagee failed in its obligations to preserve and adequately market the property. The court's analysis also included assessing whether the mortgagee's actions constituted a breach of the Corporations Act 2001 (Cth) under section 420A.

The court found that the mortgagee's actions did not constitute a breach of duty as alleged by the defendant. The evidence presented did not support the claims that the mortgagee acted in bad faith, unfairly or unconscionably, failed to preserve the property, or failed to adequately market it. Consequently, the court ruled in favour of the plaintiff, Kingsway Group Limited, and dismissed the defendant's claims. The court granted the orders sought by the plaintiff, allowing them to proceed with enforcing the mortgage over the property.

Orders